VBA Legislative Blawg

The VBA Legislative Blawg is the law-related blog of Bob Paolini our government relations guru at the VBA. Bob will keep you apprised of the happenings in the Legislature and keep members up-to-date with pressing legal issues affecting the practice of law in Vermont

Thursday, March 2, 2017

House of Delegates approves policies on array of issues important to the rule of law

The ABA House of Delegates, convening Feb. 6 in Miami during the association’s Midyear Meeting, adopted new policies on a number of pressing issues of importance to the legal profession.

ABA President Linda A. Klein, addressing the delegates, called this a “defining season” for lawyers and their commitment to the rule of law, due process and access to justice.

“There has been a lot of talk about protecting our borders,” she said. “Let me tell you what the most important border is: It’s our Constitution and the rule of law it embodies. We as lawyers are called upon to protect it.” She emphasized the importance of avoiding sweeping bans based on religion or national origin and that lawyers must insist on the right to due process and legal representation for immigrants.

Klein also highlighted that, for a nation based on the rule of law, nothing is more important than a fair and impartial judiciary. Also on the ABA’s list of important issues are support for the Legal Services Corporation and criminal justice reform, she said.

Policy resolutions adopted by the delegates include opposing an executive order issued in January to restrict entry into the United States from seven specific countries, and urging attention to legal procedures and legal rights in crafting future executive orders regarding border security, immigration enforcement, and terrorism. Other new policies include support for action to improve the civil justice system, prevent sexual and gender-based violence, protect those with disabilities from discrimination, and provide legal assistance to veterans.

Panel discussions focused on a wide variety of topics, including the judicial nomination and confirmation process, the death penalty, public service loan forgiveness programs, the gender pay gap, immigration, environmental issues, and legal innovation.

Details of the Resolutions voted on can be found on the VBA website under the Mid Year Meeting agenda. Please contact me with any questions you may have about the actions of the ABA House of Delegates.

Tuesday, February 21, 2017

The Court Administrator made her presentation this morning to the House Appropriations Committee on the judicial branch FY18 budget request. The governor recommended an increase in the current year's amount and the court is requesting an additional almost $500K. Details can be found in the documents listed under Patricia Gabel on this page

To best understand their request and what the governor has agreed to fund, read the bottom two documents- the crosswalk and the summary. Today will no doubt be the only time the judicial branch gets the opportunity to present to House Appropriations before the budget is voted on. Of course, another opportunity exists when the bill goes to the Senate.

Tonight is the public hearing on alimony beginning at 5:30. Any family law practitioner with an interest in this issue and a position on whether to incorporate the guidelines as recommended by the Family Division Oversight Committee should try to appear. If that's not doable perhaps an email to the members of the Senate Judiciary Committee will help. Here's why you can find them; click on their names and it will bring up their emails:

Friday, February 17, 2017

These are Teri Corsones' notes from last night's retention hearing on the last five superior judges. Remember that the pubilc hearing is coming up on Thursday February 23rd at 7PM in room 11 of the statehouse.

Judge Theresa DiMauro

24 years on the bench; 4th retention cycle. Judge DiMauro has had a variety of assignments since the last retention cycle, including Windsor Civil, Rutland Criminal, Washington Civil, Windham Criminal and currently a DUI Treatment Court. Many of the assignments were impacted by unusual emergency circumstances which required her to cover other courts in addition to her regular assignment. The emergencies were also during the time of the severe judge shortage, which led to many case management challenges. Filling the judicial vacancies has helped. One committee member commented she had seen Judge DiMauro on the bench doing arraignments, during a Legislators’ Day, and commended Judge DiMauro for her patience with defendants. Another encouraged her to consider an “open door” approach to soliciting feedback from attorneys. Judge DiMauro has found the experience of covering DUI Treatment Court to be a gratifying one.

Judge Michael Kainen

A little over one year on the bench. Currently in Caledonia, and was in Windham Civil before that. He did not have civil experience in the past, and is enjoying learning the docket. He also covers contested divorce cases. He took on a number of cases in the beginning, not realizing the amount of time needed to write lengthy opinions. He is learning the benefits of “findings days”, and case management in general. He is now making mre decisions fro the bench. He is also gaining experience regarding pro se litigants.

Judge Mary Morrissey

Also on the bench a little over a year. Her background was criminal and some juvenile. She’s been assigned to the family docket primarily, in Chittenden and in Franklin. She is also covering TPR cases. As has been noted for a number of the “new judges”, there is a learning curve regarding case management. She appreciates the guidance that more veteran judges are always willing to give. She favors alimony guidelines.

Judge Gregory Rainville

11 years on the bench; second retention cycle. He was surprised at a number of the survey responses, especially compared to the survey responses he received in conjunction with his first retention. He thinks it would be helpful to have more regular opportunities for feedback, and suggested brief annual surveys, submitted anonymously. He is taking action to respond to the survey responses. He also urges the Legislature to consider increasing the number of law clerks. The law clerk he works with also works with two other judges. He acknowledged that there are issues that he is working to address, including sentencing philosophies and balancing equities with black letter law.

Judge Kirstin Schoonover

Also on the bench a little over a year. She worked initially in the Family Division in the Washington Unit, and is now in the Chittenden Unit, working in the domestic and juvenile dockets. She noted a higher level of resources available in the Chittenden Unit. Her background was working for Legal Aid. She addressed various survey comments that she attributes to several highly contentious cases she had in the Washington Unit. She also acknowledged the learning curve involved in effective case management.

Thursday, February 16, 2017

These are my contemporaneous notes form last night's retention hearing of five superior judges. The remaining five will appear before the committee tonight.

Judge Allison Arms:
5 and a half years; doing criminal docket in Chittenden now.
Comments- doesn’t appear to be happy; lack of humor. Serious person- difficult to know when a lite comment is appropriate.
What surprised you the most of going on the bench? High pressure environment- difficult decisions- time challenged- unexpected things happen. 17 years as PD. When the decision is hers it’s a very different matter. Good comments about moving cases along. Alimony guidelines: would be very useful.

Judge Thomas Carlson:
16 months a judge- did domestic docket mostly. Now in Lamoille doing all cases. Loves the challenges- intellectual, people. Likes to listen to the stories, figure out the law and then decide. Comments: a new bright star in the judiciary. Recognizes he needs more time in criminal court. Reads a lot of caselaw. Still learning docket management. Judges are very helpful as mentors. Intersection of criminal, family and juvenile court can be frustrating- fundamental challenges of poverty and there’s only so much a court can do. DCF’s job is “brutal”. Juvenile court and the services around it that can make a big difference. never had a bad experience with side judges while in practice. So far a positive experience dealing with them as a judge.

Judge Cortland Corsones:
10 years on the bench. Honored and excited to do this job; remains challenging and exciting to do this job. Has learned to be a good listener rather than a talker. Pro se litigants: two pro se in family cases; how difficult is it to get the info you need to decide? Takes a more active role; gives them a chance to speak then focuses them on the factors that need to be addressed. More difficult with one attorney is in a case; more difficult for the lawyer actually. Would like more opportunity to send people to diversion. Likes the deferred sentence bill that expands deferred sentences to those over 28 years of age. In family cases he likes to try to get the parties to talk and try to work some issues out. We need alimony guidelines. Opiates: support treatment; support DCF; more resources for juvenile courts as they are falling behind.

Judge Thomas Devine:
Second retention cycle. Just because someone has a very good lawyer doesn’t mean he has a good case. 12 years a judge after 10 as a magistrate. Talked about his approach to juvenile cases. Not an easy docket; biggest fear is sending a child home and harm coming to that child. Judges need to know more than just the law- need to know about domestic violence, child abuse, etc. Some comments about taking too long to decide. Has to be less of a perfectionist. More aware of human frailties as we age. Need to step back and not let some minor thing distract you. He was asked about his concentration in juvenile courts. He has sat in general jurisdiction courts and even within a system of rotation he likes the juvenile docket. Cases in which he has taken too long are those with complicated property division issues.

Judge Rob Bent:
Senator Benning recused himself. 11 years on the bench. A small percentage of our population uses most of our judicial resources. Every time I sentence someone or remove a child I’m doing social work. Try to follow the path of least harm. Maybe has a rocky relationship with some DCF lawyers. Some affidavits from DCF set the wrong tone; he wants to get parents engaged and not beat them down. First identify the problem; try to get parents to acknowledge it and then get to explore how to fix it. There was a comment about gender bias. He takes a comment like that very seriously. Asks himself if he would decide the same way if the genders were switched. Addressed time management and case management. “Courts are the sharp edge of social work”. Comment about deciding cases at status conferences. He tried to really find if there is an issue to decide. Concerned about the legislature’s reach into the courtroom; there has to be an analysis about which new idea to implement. When everything becomes a priority nothing is a priority.

Friday, February 10, 2017

3rd time up
No statement- offered to answer questions
Sen. Benning spoke to practice of assigning bailiffs to oral argument but the CJ said they changed the process. He asked about assigning judges if there is a recusal and the CJ explained how that's done administratively,
Sen. Flory asked about pro se; he deferred to Justice Robinson. Little civil jury work these days. Spoke about 1991 moratorium of civil jury trials due to budget pressures. Wants to energize civil docket.
Sen. Sirotkin asked if the judiciary should propose its own budget? -
Rep. Rachelson asked what is your role as CJ?
Sen. Nitka asked about probate judges; he doesn’t want to reopen that issue. Wants relaxed venue in CHINS.

Justice Eaton:

First time up for retention as a Justice; twice as superior judge .
Sen Flory asked about his sitting in trial court; it was a stark reminder of needs of the courts.
Sen Benning asked about some of the comments; some good, some negative.
Rep. Viens asked what are we doing right and wrong on opiates? Tech topic of treatment courts came up.
Rep. Troiano asked about expanding PD availability.
Sen. Nitka asked about the alimony reform discussion in Senate Judiciary. He declined to answer as they have an alimony case right now.

Justice Robinson:

On the court 5&1/2 years
Spoke to bar work in pro bono and Washington state licensed legal technician law.
Rep. Rachelson was impressed by comments that indicated that she is consistently well prepared. The issue of limits of small claims courts was raised during a discussion about a "pro se" court.
Rep. Viens- "great comments; you’re well respected". But he was concerned about constituent complaints that judgments are never paid from small claims actions.
Rep. Rachelson asked whether the justices should be getting more feedback?

Justice Skoglund:

20th year; she continues to love the job; not so much the administration. Stays in contact with legislature talking about its role in updating the law.
Sen. Sirotkin was impressed by her letter. She likes going back to trial bench. Some comments showed that she is engaging and makes people feel comfortable.
Sen. Nitka also remarked about the nice comments.

The Joint Committee on Judicial Retention will hold a public hearing on
Thursday, February 23, 2017, starting at 7:00 pm. The hearing will be held in
Room 11 at the State House. Members of the public interested in testifying
regarding the above Judges may sign up no sooner than 30 minutes prior to the
hearing. Each person will have 5 minutes to testify. The hearing will adjourn
at 8:00 pm unless there are no persons requesting to testify, in which case the
meeting may adjourn at 7:30 pm.